{ "id": 5344732, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Freddie Dowery, Defendant-Appellant", "name_abbreviation": "People v. Dowery", "decision_date": "1974-05-03", "docket_number": "No. 58392", "first_page": "738", "last_page": "745", "citations": [ { "type": "official", "cite": "20 Ill. App. 3d 738" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "51 N.E.2d 997", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "320 Ill.App. 610", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4978502 ], "opinion_index": 0, "case_paths": [ "/ill-app/320/0610-01" ] }, { "cite": "148 N.E.2d 615", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill.App.2d 395", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5180083 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/16/0395-01" ] }, { "cite": "243 N.E.2d 467", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill.App.2d 432", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2901824 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/101/0432-01" ] }, { "cite": "397 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054849 ], "weight": 3, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/us/397/0436-01" ] }, { "cite": "251 U.S. 385", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3680880 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/251/0385-01" ] }, { "cite": "411 U.S. 223", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10262 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/411/0223-01" ] }, { "cite": "38 L.Ed.2d 561", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 11715874 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/414/0338-01" ] }, { "cite": "98 L.Ed. 503", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "347 U.S. 62", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299308 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/347/0062-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "364 U.S. 206", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165005 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/364/0206-01" ] }, { "cite": "401 U.S. 222", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11712077 ], "weight": 3, "pin_cites": [ { "page": "225" }, { "page": "4" }, { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/us/401/0222-01" ] }, { "cite": "351 F.2d 564", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 807985 ], "year": 1965, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/f2d/351/0564-01" ] }, { "cite": "438 F.2d 1027", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2206441 ], "opinion_index": 0, "case_paths": [ "/f2d/438/1027-01" ] }, { "cite": "318 F.Supp. 648", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3168308 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f-supp/318/0648-01" ] }, { "cite": "91 S.Ct. 71", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "27 L.Ed.2d 88", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "400 U.S. 851", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12082498, 12082886, 12082793, 12082538, 12082697, 12082604, 12082643, 12082838 ], "opinion_index": 0, "case_paths": [ "/us/400/0851-01", "/us/400/0851-08", "/us/400/0851-06", "/us/400/0851-02", "/us/400/0851-05", "/us/400/0851-03", "/us/400/0851-04", "/us/400/0851-07" ] }, { "cite": "83 Cal. Rptr. 382", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "463 P.2d 734", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "1 Cal.3d 641", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 1183322 ], "opinion_index": 0, "case_paths": [ "/cal-3d/1/0641-01" ] }, { "cite": "426 F.2d 1161", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2247009 ], "opinion_index": 0, "case_paths": [ "/f2d/426/1161-01" ] }, { "cite": "349 F.Supp. 749", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5702422 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f-supp/349/0749-01" ] }, { "cite": "447 F.2d 817", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 808506 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "818" } ], "opinion_index": 0, "case_paths": [ "/f2d/447/0817-01" ] }, { "cite": "276 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill.App.3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2756074, 2757207 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0401-02", "/ill-app-3d/2/0401-01" ] }, { "cite": "367 U.S. 643", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1785580 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/367/0643-01" ] }, { "cite": "277 N.E.2d 878", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill.2d 136", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912891 ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0136-01" ] } ], "analysis": { "cardinality": 833, "char_count": 16612, "ocr_confidence": 0.749, "pagerank": { "raw": 1.9906632421530995e-07, "percentile": 0.741732819172083 }, "sha256": "644ea90c13904295a3e0d3faaba1dbfe2d746b5a0e804278c03e87b6b700bf94", "simhash": "1:db87fb6d02d0fc9d", "word_count": 2689 }, "last_updated": "2023-07-14T16:58:20.277928+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Freddie Dowery, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nDefendant appeals from the revocation of his probation, alleging that the trial court erroneously admitted certain evidence at the probation revocation proceeding.\nWhile on probation following a conviction for armed robbery, defendant was arrested and charged with burglary. At the preliminary hearing on the burglary charge, Police Officer James Polk was the only witness. Prior to the officer\u2019s testimony, defendant made a \u201cpreliminary motion to quash and suppress.\u201d The record does not contain a written motion, and it is not clear from the report of proceedings exactly what defendant sought to quash and suppress. On appeal, however, both parties have treated it as a motion to quash the arrest and to suppress the items allegedly stolen in the burglary. Thus, it appears that the motion to suppress was made under section 114 \u2014 12(b) of the Code of Criminal Procedure. Ill. Rev. Stat. 1973, ch. 38, par. 114 \u2014 12(b).\nOfficer Polk then testified at the hearing on the motion that he and another officer made a daylight afternoon arrest of defendant, after observing defendant walking down the street carrying a bulky object wrapped in a red blanket and a lavender sheet. He was with another man carrying a plastic tote bag. The men ran into an alley and dropped the articles they were carrying. Only defendant was apprehended, and the police recovered the dropped items, including the tote bag and a component set. At the police station, defendant said that a friend of his had committed the burglary. Following the officer\u2019s testimony, the court granted defendant\u2019s motion to suppress, apparently on the ground that the search and seizure were pursuant to an illegal arrest. In their briefs, the parties assume that the motion to quash was also granted, although this too is not clear from the record. The matter was stricken from the call with leave to reinstate, and the State did not appeal from the suppression order.\nA few days later a rule was. filed to show cause why defendant\u2019s probation should not be revoked. At the initial hearing on the rule, defense counsel objected to the testimony of Officer Polk on the ground that the order of suppression issued at the preliminary hearing was binding on the court at the revocation proceeding. After argument of counsel, the court ruled the evidence admissible, relying on Federal court decisions holding that the exclusionary rule prohibiting the use of evidence illegally seized does not apply to probation revocation hearings.\nOfficer Polk then testified substantially as he did at the preliminary hearing. In addition, Sandrea Scott testified that the recovered articles had been stolen from her home after she left for work that day. Defendant, in his testimony, denied participating in the burglary and stated he met Junkie Slim shortly before the arrest and bought the component set (record player and records) from him for $25. As they were walking down the street, Junkie spotted the police and told defendant for the first time that the items were \u201chot.\u201d Defendant admitted he told Officer Polk that others committed the burglary, and he was helping to carry items away.\nAfter the hearing, defendant\u2019s probation was revoked, and he was sentenced to a term of 2 to 4 years.\nOPINION\nI.\nDefendant\u2019s first contention is that the officer\u2019s testimony was erroneously admitted at the probation revocation proceeding. He argues that because the State failed to appeal from the suppression order issued at the preliminary hearing, it may not proceed on the same evidence before another judge and re-try an issue already determined.\nIn support of this contention, defendant cites People v. Taylor, 50 Ill.2d 136, 277 N.E.2d 878, which held that where the State fails to appeal from the granting of a motion at a preliminary hearing to suppress evidence illegally seized, the State is barred from using that evidence at a subsequent trial. The State had the right to appeal the suppression order under Supreme Court Rule 604. (Ill. Rev. Stat. 1973, ch. 110A, par. 604.) However, it argues that its failure to appeal does not bar the testimony of the police officer involved in the arrest and seizure at a probation revocation proceeding.\nTaylor is based in part upon section 114 \u2014 12(b) of the Code of Criminal Procedure (motion to suppress evidence illegally seized), which states that the evidence suppressed \u201cshall not be admissible in evidence against the movant at any trial.\u201d (Ill. Rev. Stat. 1973, ch. 38, par. 114 \u2014 12(b).) (Emphasis added.) The State suggests that a probation revocation hearing is not a \u201ctrial\u201d, as contemplated in Taylor and in section 114 \u2014 12(b). Initially, we note that the legislature refers to such proceeding as a \u201chearing\u201d (Ill. Rev. Stat. 1971, ch. 38, par. 117 \u2014 3; Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 6\u20144), and that the statutes relating to probation are now included under sentencing in the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 6\u20141 et seq.), and formerly were included under \u201cProceedings after Trial\u201d in the Code of Criminal Procedure (Ill. Rev. Stat. 1971, eh. 38, par. 117 \u2014 1 et seq.). At oral argument, defense counsel conceded that a probation revocation hearing is not a \u201ctrial.\u201d We are of the opinion that such a hearing is not a trial within the meaning of section 114-12(b), and we find that the testimony of the officer concerning the illegally seized items is not prohibited by the law of this state.\nII.\nDefendant\u2019s second argument is that the fourth amendment\u2019s exclusionary rule prohibits the use of evidence at a probation revocation hearing after that evidence has been found to have been illegally seized. As we noted above, the record is not clear that the evidence was suppressed for this reason. However, since the briefs of both parties indicate this as being the ground for suppression, we shall decide the issue accordingly.\nUnder the exclusionary rule, relevant evidence illegally obtained by police is not admissible to prove the guilt of the victim. The accepted purpose of its application is to deter the police from illegal searches and seizures. (Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684.) In this regard, it is possible that the extension of the exclusionary rule to probation revocation proceedings might further deter illegal police conduct. However, the supplemental deterrence that such an extension of the rule would afford is uncertain. An officer undeterred by the exclusion of evidence from a trial that might lead to a conviction is not likely to be deterred by the fact that unlawfully obtained evidence may not be used to revoke probation. Moreover, as in the case at bar, where an officer is unaware that the subject of a search is a probationer, the supplemental deterrence is virtually non-existent.\nAgainst this uncertain deterrent effect, we must weigh the effect that exclusion of relevant, rehable, but illegally obtained evidence might have on the probation system. Probation is an integral part of this State\u2019s statutory sentencing policy. Its purpose is to grant a defendant an opportunity for rehabilitation without incarceration. (People v. Henderson, 2 Ill.App.3d 401, 276 N.E.2d 372.) The rehabilitative goal, however, must be considered in light of the objective of protecting society by preventing the commission of offenses. A court sentencing an offender to probation takes a calculated risk that the offender\u2019s rehabilitation will progress better and that society will be adequately protected by the offender\u2019s return to the community under supervision. When it appears that the court\u2019s confidence has been misplaced, prompt steps should be taken to consider the advisability of revoking probation. To prevent it from considering relevant and significant evidence concerning an alleged violation would impede the exercise of its discretion and perhaps undermine the attempt the legislature has made in the Unified Code of Corrections to assure the maximum input of information into the sentencing process. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 4\u20141.) The possible unavailability of relevant evidence at the probation revocation proceeding might also result in a hesitancy to initially sentence to probation, which would be manifestly unfair to offenders and to society and might seriously interfere with the rehabilitative purposes of the criminal justice system.\nIn summary, we believe that under present circumstances the supplemental deterrence resulting from the expansion of the exclusionary rule to probation revocation proceedings would be minimal. The potential disruption of the probation system by an application of the rule could be substantial.\nWe note also that other courts have ruled on this question in both probation revocation cases and the analogous parole revocation cases, and they have all concluded that the exclusionary rule need not be applied to such hearings. See, e.g., United States v. Hill (7th Cir. 1971), 447 F.2d 817; United States v. Allen (N.D. Cal. 1972), 349 F.Supp. 749; United States ex rel. Sperling v. Fitzpatrick (2d Cir. 1970), 426 F.2d 1161; In re Martinez, 1 Cal.3d 641, 463 P.2d 734, 83 Cal. Rptr. 382, cert. denied, 400 U.S. 851, 27 L.Ed.2d 88, 91 S.Ct. 71.\nIn U.S. ex rel. Lombardino v. Heyd (E.D. La. 1970), 318 F.Supp. 648, aff\u2019d (5th Cir. 1971), 438 F.2d 1027, after a Louisiana state court suppressed the use of evidence produced from a warrantless search, the same evidence was allowed in a probation revocation hearing. The Louisiana Supreme Court rejected the contention that the fourth and fourteenth amendments barred the use of illegally seized evidence to revoke his probation. On petition for writ of habeas corpus, the Federal District Court, E. D. Louisiana, refused to extend the fourth amendment\u2019s exclusionary rule to probation revocation hearings, stating at page 650:\n\u201cI have no hestitation in stating that probationers are entitled to basic constitutional rights, including protection from illegal searches and seizures. [Citations.] The crux of the question posed here, however, is the extent of such rights. \u2018[T]he federal constitutional rights of an accused in a criminal prosecution and the rights of an offender in proceedings on revocation of conditional liberty under parole or probation are not coextensive.\u2019 Brown v. Warden, 351 F.2d 564, 567 ( 7th Cir. 1965).\nIn this case, Lombardino was afforded protection from the unlawful search and seizure when the marijuana was suppressed and the possession charge dropped. Lombardino\u2019s right to be free from unreasonable searches and seizures\u2019 was recognized to this extent.\u201d\nIn United States v. Hill (7th Cir. 1971), 447 F.2d 817, 818, the court held the exclusionary rule does not apply to revocation probation proceedings. Quoting from Harris v. New York, 401 U.S. 222, 225, 28 L.Ed. 2d 1, 4, 91 S.Ct. 643, 645, where the Supreme Corut stated:\n\u201cAssuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.\u201d\nIn addition, defendant contends that deterrence is not the only reason for the exclusionary rule. He argues that an important basis for the rule is the \u201cimperative of judicial integrity\u201d announced in Elkins v. United States, 364 U.S. 206, 4 L.Ed.2d 1669, 80 S.Ct. 1437. In discussing this principle, Chief Justice Warren explained that \u201cCourts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.\u201d (Terry v. Ohio, 392 U.S. 1, 13, 20 L.Ed.2d 889, 88 S.Ct. 1868.) (Emphasis added.) We note, however, that other decisions of this high court, such as Walder v. United States, 347 U.S. 62, 98 L.Ed. 503, 74 S.Ct. 354, United States v. Calandra, -U.S.-, 38 L.Ed.2d 561, 94 S.Ct. 613, and Brown v. United States, 411 U.S. 223, 36 L.Ed.2d 208, 93 S.Ct. 1565, indicate that some governmental use of illegally seized evidence is constitutionally permissible. In Calandra, no mention was made of this \u201cimperative\u201d, which led Mr. Justice Brennan to conclude in his dissenting opinion that the court has rejected the \u201cimperative.\u201d In view thereof, it appears clear that the \u201cimperative of judicial integrity\u201d is not an ironclad principle. Consistent therewith, it is our belief that the judicial integrity of probation revocation hearings is not impaired by permitting the court to examine all relevant evidence to determine whether a probationer has violated the conditions of his probation.\nFinally, defendant relies on Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182. There, the Supreme Court held grand jury subpoenas to be invalid because they were based on knowledge obtained from illegally seized evidence. Mr. Justice Holmes, writing for the court, stated in dictum at page 392 that: \u201cThe essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.\u201d The facts of the case at bar differ considerably from Silverthorne, where defendant had already been indicted and the subpoenas sought documents for use primarily at the criminal trial. The consequence of the court\u2019s decision was to exclude the evidence from the subsequent trial. We note that subsequently in United States v. Calandra, supra, the Supreme Court denied the application of the exclusionary rule to grand jury proceedings and, in so doing, stated that the above quoted dictum of Justice Holmes in Silverthorne has been substantially undermined by later cases.\nIn conclusion, we believe that in the best interest of offenders and society, we should decline to embrace a view that would achieve a speculative and, under present conditions, a minimal advance in the deterrence of police misconduct at the expense of substantially impeding the sentencing system. Accordingly, we hold that, under the circumstances here, the constitution does not prohibit the use of illegally seized evidence at probation revocation hearings.\nDefendant next contends that the State should have been barred from using the suppressed evidence by the doctrine of collateral estoppel. The doctrine states that \u201cwhen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.\u201d (Ashe v. Swenson, 397 U.S. 436, 443, 25 L.Ed.2d 469, 90 S.Ct. 1189.) We have held in this opinion that the exclusionary rule prohibiting the use of illegally seized items as evidence does not apply to probation revocation hearings. Thus, the question of the legality of the search and seizure was not an issue of ultimate fact at those hearings and, in view thereof, the doctrine of collateral estoppel does not apply.\nFinally, defendant argues that he was placed in double jeopardy by the use of the suppressed evidence at the probation revocation hearing. We disagree, and we believe that the cases cited by the State are controlling.\nIn People v. Whittaker, 101 Ill.App.2d 432, 243 N.E.2d 467, the court held that although the defendant was acquitted of a murder charge, the occurrences that resulted in the murder could be considered at a probation revocation hearing. In People v. Kostaken, 16 Ill.App.2d 395, 148 N.E.2d 615, where it was contended on appeal from an order revoking probation that defendant had been placed in double jeopardy, the court held that one who is on probation is not in the same category as one charged by information or indictment. So, also, in People v. Kuduk, 320 Ill.App. 610, 51 N.E.2d 997, the reviewing court rejected defendant\u2019s res judicata contention where, after he was acquitted of a manslaughter charge, the evidence of such charge was heard in proceedings to revoke his probation.\nFor the reasons stated, the revocation of defendant\u2019s probation is affirmed.\nAffirmed.\nDRUCKER and LORENZ, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Saul H. Braunde, Assistant Public Defender, of counsel), for appellant,", "Bernard Carey, State\u2019s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Freddie Dowery, Defendant-Appellant.\n(No. 58392;\nFirst District (5th Division)\nMay 3, 1974.\nModified on denial of rehearing June 11, 1974.\nJames J. Doherty, Public Defender, of Chicago (Saul H. Braunde, Assistant Public Defender, of counsel), for appellant,\nBernard Carey, State\u2019s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0738-01", "first_page_order": 760, "last_page_order": 767 }